Whistleblower Reprisal Appeals on the Rise

Appeals to the MSPB claiming retaliation increased after enactment of a 2012 law clarifying and extending whistleblower protections, GAO has reported. So-called “individual right of action” appeals—in which individuals pursue appeals even if the Office of Special Counsel does not bring a complaint on their behalf before the merit board—rose from 268 in 2012 to 461, 360 and 392 in the following three years.

The 2012 law among other things clarified that a disclosure made to the alleged wrongdoer, as part of an employee’s normal job duties, or of information already known, qualifies for protection, overturning prior court decisions to the contrary. It also allowed challenges asserting reprisal for activities including filing a whistleblower appeal, cooperating with an inspector general or OSC investigation, or refusing to obey an order that would require the employee to violate a law.

Meanwhile, there was a decrease, from 284 to 190 over 2012-2015, in so-called “otherwise appealable action” appeals—cases in which an individual has been subject to an action directly appealable to MSPB, such as a demotion, and claims that the action was taken because of whistleblowing. GAO said there are a number of possible explanations for that decrease, including more reliance by employees on other channels for challenging those actions, such as negotiated grievance or EEO procedures.

For both types of cases, about a quarter are settled, nearly another quarter reach a decision by the MSPB and the rest are dismissed for technical reasons such as missing a filing deadline. Of those reaching a decision, the agency wins a large majority for reasons including that the agency would have taken the same action regardless.

By agency, the VA accounted for the most—344 total over 2013-2015—as employees there complained of suffering reprisal for making disclosures related to the patient scheduling and care scandals there, or for cooperating with investigators.